early 2010 Before 1757 ( December 21, 2011)

The plaintiff as an oligopolistic stockholder bears the secondary tax liability.

Since it is apparent that the plaintiff actually owns all the shares issued by the non-party company as of the date when the tax liability is established, the plaintiff bears the secondary tax liability as an oligopolistic shareholder, and the "person who actually exercises the rights to shares" is separate whether or not he controls the management of the company.

Article 39 of the Framework Act on National Taxes

2012 disposition of revocation of the imposition of value-added tax

XX

Head of Dong District Office

September 20, 2012

November 8, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On November 3, 2009, the Defendant revoked each taxation disposition stated in attached Form 1, which the Plaintiff rendered against the Plaintiff (1).

1. Details of the disposition;

A. The XX company (the trade name before the amendment:O; hereinafter referred to as the "non-party company") was registered as a business operator on November 1, 2004 and was found to have manufactured pseudo petroleum and subsequently closed ex officio on March 5, 2009. The plaintiff acquired 000 shares issued by the non-party company, which was closed on June 2004, in the name of the head A, i.e., e., e., 5,00 shares issued by the non-party company. From the end of 2004 to December 31, 2008, the register of shareholders of the non-party company was registered as the list of shareholders of the non-party company and heada,00 shares each of 5,00 shares.

B. The non-party company was discovered that it manufactured and sold pseudo petroleum products around February 2009, and the Defendant conducted a tax investigation with respect to the non-party company from May 2009 to July 2009, thereby detecting the fact of partially omitting sales and purchasing processed products.

C. The Defendant, on March 2, 2009, corrected and notified the non-party company of the value-added tax of 000 won on March 2, 2008, the wage and salary income tax of 000 won on March 6, 2009, and the second value-added tax of 2008 on March 9, 2009, respectively. On October 1, 2009, the Defendant issued a revised and notified the non-party company of the value-added tax of 200 won on February 2, 2007, the value-added tax of 1, 2008, the second value-added tax of 2,000 won on February 2, 2008, the value-added tax of 1, 200 won on January 2, 200, the corporate tax of 200, and the corporate tax of 200 on March 9, 2009.

D. As the non-party company failed to pay each tax stated in the attached tax disposition among the above tax taxes, the defendant issued a disposition to demand the payment of additional tax on November 3, 2009 by applying Article 39(1)2(a) and (b) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter referred to as the "Act") and imposing each tax stated in the attached tax disposition on the plaintiff, by applying Article 39(1)2(a) and (b) of the former Framework Act on National Taxes (hereinafter referred to as the "instant disposition").

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Eul evidence 1 to Eul evidence 4 (including various numbers for each item) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff is merely a formal shareholder who was provided with the shares of the non-party company by lending money to YellowB, a substantial operator of the non-party company, and was merely a formal shareholder who was provided with the shares of the non-party company as security, and did not exercise control over the facts or exercise the right to the shares of the non-party company. Thus, the disposition of this case made on a different premise is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Article 39(1)2(a) of the Act provides that where the property of a corporation is insufficient to cover the national tax, additional dues, and disposition fee for arrears that the corporation shall pay with the property of the corporation, a person who actually exercises rights over shares of at least 51/100 of the total number of issued and outstanding shares shall be subject to secondary tax liability for such shortage. In such a case, the exercise of rights over shares of at least 51/100 does not necessarily require the actual exercise of shareholder's rights, and it is sufficient that the exercise of shareholder's rights over shares as of the date on which the tax liability is established is in a position to exercise shareholder's rights (see, e.g., Supreme Court Decisions 2008Du983, Sept. 11, 2008; 2001Du5354, Jul. 8, 2003).

Meanwhile, the fact that the tax authority constitutes an oligopolistic shareholder with secondary tax liability under Article 39(1)2 of the Act should be asserted and proved by the tax authority. However, if the tax authority submits data that can be deemed as an oligopolistic shareholder by a shareholder registry or by a corporation’s specification of stock movement or corporate register, etc. submitted to the tax authority, it shall be deemed that the tax authority has proved that the secondary taxpayer cannot be a secondary taxpayer, such as that the person who intends to be exempted from liability as the secondary taxpayer has stolen the shareholder’s name or is merely a nominal shareholder, not a de facto shareholder (see, e.g., Supreme Court Decision 92Nu10906, Dec. 11, 1992).

2) In this case, until December 31, 2008, the Plaintiff was registered as a shareholder who owns 50% shares of the non-party company on the list of shareholders, and the fact that the Plaintiff actually owned 50% shares of the name of the head of the Gu.

3) First of all, among the taxation dispositions stated in the attached Table, it is clear that the Plaintiff actually owned the entire shares issued by the non-party company as of the date of establishment of each tax liability, i.e., the second taxable year of 2007, the second taxable year of 2007, the corporate tax of 2007, the first taxable year of 2008, June 30, 2008, and the first taxable year of 2008, the second taxable year of 2008, and the second taxable year of 2008, and thus, the Plaintiff is an oligopolistic shareholder.

4) Next, considering the following: (a) the value-added tax for the second time in 2008, the time when the liability for tax payment was established after December 31, 2008; (b) the corporate tax for the business year in 2008; and (c) the first time in 2009, the time when the liability for tax payment was established, which is the date of the ex officio closure of the non-party company’s business; (d) the traffic, energy, and environment tax for February 5, 2009; and (e) the overall purport of the statement and arguments in 6, B, and 5 through 8, it is reasonable to deem that the Plaintiff received 500 shares of the company’s name as its representative director on February 20, 209, and concluded the sale contract with the non-party 2, 300,000 shares under the above name of the non-party 1, 300,000 won, respectively.

5) Therefore, at the time when the liability to pay the value-added tax in 2008, the corporate tax in 2008, the first half-year value-added tax in 2009, and the traffic, energy, and environment tax that accrue in February 2009, the Plaintiff, as an oligopolistic shareholder of the non-party company, bears the secondary liability to pay taxes.

6) Meanwhile, the Plaintiff’s assertion that it is the representative director of a separate juristic person as seen earlier. According to the evidence Nos. 7-1 and 2 of the evidence No. 7-2 of the Plaintiff, the Plaintiff was found to have not been charged for violating the Punishment of Tax Evaders Act on the grounds that the Plaintiff was unaware of the non-party company’s failure to receive the tax invoice and the non-issuance of the non-party company’s tax invoice as a result of the tax investigation, but the non-prosecution was found to have been disposed of on the grounds that the Plaintiff was not aware of the non-party company’s failure to receive the tax invoice, but the “person who actually exercises the right to shares” under Article 39(1)-2(a) of the Act is classified as whether the company’s management has been controlled. Thus, the above facts alone are insufficient to acknowledge that the Plaintiff was the actual shareholder, and there is no evidence to support that the Plaintiff was merely registered on the register of shareholders and is not a actual shareholder (as stated in the evidence No. 4-1 of the evidence No. 2004).

7) If so, the Plaintiff constitutes a secondary taxpayer under Article 39(1)2(a) of the Act, and thus, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.